What The Media Should Know About Gun Background Checks Before Obama's Announcement Of Executive Actions On Gun Violence

››› ››› TIMOTHY JOHNSON

President Obama will reportedly soon announce several executive actions to address gun violence. Although the details of the plan have not yet been released, several outlets are reporting that the Obama administration will address what is known as the "gun show loophole" or "private sales loophole" that allows the sale of guns without a background check at gun shows and through other venues such as online marketplaces. Although popular with the general public, conservative media often spread falsehoods about background checks on gun sales in order to attack proposals to expand these checks to more sales.

Obama To Announce Executive Actions To Address Gun Violence

One Executive Action Will Reportedly Address The Sale Of Firearms Without A Background Check By Unlicensed Sellers At Gun Shows. Under federal law, only individuals who are "engaged in the business" of selling firearms are required to perform background checks on customers, while people who make "occasional sales" do not. Vagueness surrounding what it means to be "engaged in the business" has allowed some sellers to sell large numbers of firearms, at gun shows or elsewhere, without performing checks if they claim they are not bona fide gun dealers. The Washington Post reported that one executive action to be announced by the Obama administration would address high-volume unlicensed sellers:

The president will meet Monday with Attorney General Loretta E. Lynch to finalize a series of new gun control measures and will announce his package of proposals soon after, according to several individuals who spoke on the condition of anonymity because the plan is not yet public.

One of the main proposals Obama is poised to adopt would require some unlicensed gun dealers to get licenses and conduct background checks on potential buyers. The change is aimed at occasional dealers, including some who sell online frequently or rent tables at gun shows but do not have a storefront.

Obama began examining how he could tighten the nation's gun rules after October's mass shooting at Umpqua Community College in Roseburg, Ore. Administration lawyers have spent months reviewing various proposals to make sure they can withstand legal challenges. [The Washington Post, 1/2/16]

The "Gun Show Loophole" Or "Private Sale Loophole" Allows Firearms To Be Sold Without A Background Check

CONSERVATIVE MEDIA FALSEHOOD: There Is No Such Thing As The "Gun Show Loophole." During a January 3 appearance on Fox News Sunday, conservative radio host and Fox News contributor Laura Ingraham claimed that GOP presidential candidate Jeb Bush was "right" when he claimed the gun show loophole "doesn't exist." [Fox Broadcasting Co., Fox News Sunday, 1/3/16]

REALITY: The Majority Of States In The U.S. Allow The Sale Of A Firearm Without A Background Check At A Gun Show. According to a review by the Law Center to Prevent Gun Violence, 32 states have not expanded background check requirements beyond federal law, meaning that sales at gun shows (or other venues such as online sales) without a background check by private sellers would be allowed in those states. [Law Center to Prevent Gun Violence, accessed 1/4/16]

REALITY: Approximately 40 Percent Of Gun Buyers Obtained Their Most Recent Firearm Without A Background Check. Preliminary Harvard University research shared with online magazine The Trace indicates that 34 percent of gun buyers do not go through a background check and two-thirds of owners who get their guns through transfers avoided a background check, leading to a total of roughly 40 percent of owners who obtain guns without a background check:

Azrael was not ready to provide specific numbers, as the research is still being readied for formal release, and those figures will merit thorough examination once they are made public. But here's how she says the numbers stack up about how Americans acquire their firearms.

  • Roughly 70 percent: Gun owners who purchased their most recent gun.
  • Roughly 30 percent: Gun owners who did not purchase their most recent gun, instead obtaining it through a transfer (i.e., a gift, an inheritance, a swap between friends).
  • Zeroing in on the population of gun buyers, about 34 percent did not go through a background check.
  • Among the gun owners who got their firearms through a transfer, roughly two-thirds did not go through a background check.

Add it up, and it works out to:

  • Roughly 60 percent: the share of gun owners surveyed who did go through a background check when they obtained (through sale or transfer) their latest gun.
  • Roughly 40 percent: the share of gun owners who did not. [The Trace, 10/21/15]

REALITY: Investigation At Gun Shows Found Most Unlicensed Sellers Would Complete A Sale To Someone Who Said They Couldn't Pass A Background Check. According to a 2009 investigation by the City of New York, 19 of 30 private sellers agreed to sell a firearm to an undercover investigator who told them that he probably could not pass a background check:

Federal law states that it is illegal for anyone to sell a gun to someone they "know" or "have reasonable cause to believe" is a prohibited purchaser. The City's integrity test found private sellers would willingly sell to someone who said they probably could not pass a background check. Based on video evidence, it appears that 19 out of 30 private sellers (63 percent) sold guns illegally. Two private sellers were seen at multiple shows. One failed the integrity test two times, and one failed three times, making the failure rate for integrity tests even higher. Out of 33 tests, there were 22 failures - a failure rate of 67 percent. In total, 20 semi-automatic handguns and 2 assault rifles were purchased from private sellers, with prices ranging from $100 to $900.

[City of New York, October 2009]

Expanded Background Checks Are Overwhelmingly Popular With Gun Owners And The Public At Large

CONSERVATIVE MEDIA FALSEHOOD: The Claim 90 Percent Of Americans Support Background Checks Has Been "Debunked." During a January 3 appearance on Fox News Sunday, Ingraham claimed, "The 90 percent statistic of all supporting background checks, that's been debunked. Lots of the myths about gun ownership are perpetrated by people who never much liked the Second Amendment in the first place, and who have a vested interest in amassing more power in Washington, D.C." [Fox Broadcasting Co., Fox News Sunday, 1/3/16]

REALITY: PolitiFact Rated "True" The Claim 90 Percent Of Americans Support Background Checks On All Gun Sales. In an October 5 article, PolitiFact explained that polling consistently finds large support for requiring background checks for firearms purchases, noting that the most recent polling "found 93 percent of adults in favor." [PolitiFact, 10/5/15]

REALITY: November 2015 Poll Found 83 Percent Support For Background Checks Among Gun Owners. A November 2015 poll conducted by Public Policy Polling found broad support for background checks on all gun sales across several demographics:

Overwhelming support for background checks: 83 percent of gun owners nationally support criminal background checks on all sales of firearms, while only 14 percent of gun owners oppose them. There is strong bipartisan agreement on the issue, with 90 percent of Democrat and 81 percent of Republican gun owners in support of background checks. Additionally, 72 percent of NRA members support them. A 2012 Frank Luntz survey of gun owners found that 82 percent were in favor of background checks, including 74 percent of gun owners. Despite well-funded efforts by the NRA and associated groups, support among both gun owners and NRA members remains high. [Center for American Progress, 11/17/15]

Expanding Background Checks - Including Through Executive Action - Is Consistent With The U.S. Constitution

CONSERVATIVE MEDIA FALSEHOOD: Fox Senior Judicial Analyst Claims It Would Be "Unconstitutional" For Obama To Expand Background Checks With Executive Action. During the January 4 broadcast of America's Newsroom, Fox News senior judicial analyst Andrew Napolitano claimed that using executive action to expand the scope of gun sellers who would need to perform a background check on their buyers would be an "unconstitutional" usurpation of Congress' powers. [Fox News,America's Newsroom, 1/4/16]

REALITY: Constitutional Scholars Say Background Checks Can Be Expanded Through Executive Action In A Manner "Consistent With Congressional Intent." A group of 23 constitutional law scholars organized by the American Constitution Society for Law and Policy explained in a November 2015 letter that it would be constitutional for Obama to use executive action in "clarifying which gun sellers are 'engaged in the business' of dealing firearms, and therefore must obtain federal licenses and conduct background checks on would-be gun purchasers":

We do not purport to offer here a comprehensive list of all actions that the Administration might take to reduce gun violence. But we do highlight several important actions within the Administration's power that would ensure the federal gun laws are applied consistent with congressional intent. Among these steps are:

Clarifying which gun sellers are "engaged in the business" of dealing firearms, and therefore must obtain federal licenses and conduct background checks on would-be gun purchasers. Just as services like eBay and Craigslist allow Americans to offer a broad range of goods for sale online, numerous Internet services facilitate the sale of large numbers of firearms by unlicensed dealers, frequently without conducting any background checks. The failure of these high-volume sellers to obtain licenses and conduct background checks creates a ready source of firearms for dangerous criminals and other prohibited persons, and fuels the illegal gun trafficking that arms criminals and undermines efforts to reduce gun violence. The Administration should act to close this dangerous loophole. [American Constitution Society for Law and Policy, 11/12/15]

Background Checks Have Stopped Millions Of Dangerous And Prohibited People From Buying Guns

CONSERVATIVE MEDIA FALSEHOOD: Nothing Obama Could Propose Will Reduce Gun Violence. Without waiting for the actual policy proposals to be released, Fox News host Steve Doocy said, "The big question is would any of the things that the president is going to do, would they have stopped any of the shootings we've seen in the past? So far, probably not." [Fox News, Fox & Friends, 1/4/16]

REALITY: The Background Check System Has Stopped More Than 2.1 Million Sales To Prohibited Persons Over The Past 20 Years. Even with loopholes such as the "gun show loophole," the federal background check system has stopped more than 2.1 million prohibited sales since its inception, according to a report from the Brady Campaign to Prevent Gun Violence:

More than 2.1 million illegal firearms sales -- including 1 million attempted purchases by convicted felons -- have been stopped in the 20 years since the enactment of the Brady Handgun Violence Prevention Act, according to a new report.

But the report released Friday by the Brady Campaign to Prevent Handgun Violence also stresses that millions of weapons are still being sold to buyers who are prohibited from owning them. Roughly 40 percent of gun purchases, including guns sold online and at gun shows by unlicensed sellers, are not subject to the background checks.

"It is clear Brady background checks work. Lives have been saved by the Brady law as we have seen the undeniable evidence showing gun homicides have decreased since the law took effect 20 years ago," said Dan Gross, president of the Brady Campaign to Prevent Gun Violence. "We need Congress to expand Brady background checks to make it harder for criminals and other dangerous people to get guns online, in classified advertisements or at gun shows." [The Washington Post, 2/28/14]

REALITY: Stronger Gun Laws Increase The Opportunity Cost For Dangerous People To Obtain Firearms, Causing Fewer Of Them To Successfully Do So. An August 2015 article in The Trace explained how research has proven that stronger background check laws deter prohibited people by increasing the obstacles associated with obtaining a firearm if prohibited:

Further research has revealed background checks in particular are effective at keeping guns out of the hands of criminals and saving lives.

Before the Brady Act was passed in 1993, 32 states had no background check requirements of their own, making it easy for criminals to obtain firearms through licensed retailers. One obvious way we can be sure the law removed a previously attractive avenue for criminals to obtain guns is to note that criminals continued trying to secure firearms from federally licensed retailers after background checks came online. Following the passage of the Brady Act, Georgia saw 9.4 percent of its firearm applications by prohibited persons in 1996, and several other states recorded denial rates around 4 percent. Each of those rejected purchases represents a dangerous person who would have easily been able to easily buy a gun before the background check system went into effect.

[...]

The strongest and most recent evidence on the efficacy of background checks thwarting criminals comes from two studies conducted by Dr. Daniel Webster at the Center for Gun Policy at Johns Hopkins University, which show the effectiveness of so called "permit to purchase" laws on reducing criminal access to firearms. The first study evaluated the repeal of a 2007 Missouri law that had required showing a permit, contingent on passing a background check, prior to obtaining a firearm. The repeal of this law was associated with a spike in the murder rate by 14 percent through 2012 -- "an additional 49 to 68 murders per year." Furthermore, the study found strong evidence that the permit requirement had also been keeping neighboring states safe from gun trafficking. After its repeal, crime guns found in neighboring states traced back to Missouri increased significantly.

The second study examined a similar permit requirement passed in Connecticut in 1995. It looked at homicide rates in Connecticut ten years after the passage of the law, and compared that rate with what would be expected had Connecticut not passed the law at all. The study found a 40 percent reduction in the state's firearm-related homicide rate. Just as importantly, Connecticut did not experience a concomitant increase in homicide by other means -- in other words, criminals did not switch to using some other weapon to commit murder when they failed to get their hands on a firearm. Gun advocates often dismiss the potential of any gun law, arguing that killers will just kill some other way -- that is, if a criminal is sufficiently motivated to carry out a homicide, he's going to do it irrespective of whether or not he has access to a gun. The study proves that this so-called "substitution effect" doesn't occur.

[...]

The only coherent interpretation of all of these studies is that when a well-designed gun policy effectively decreases dangerous people's access to firearms, it also decreases crime. To put it more plainly: the laws work. If it was simply the case that criminals don't follow laws, and that they would find some way to commit a crime irrespective of the legal obstacles in front of them, then there should be no difference between any of the groups examined in the studies above. [The Trace, 9/8/15]

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